Citation Nr: 21065862 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-39 646A DATE: October 27, 2021 ORDER As new and material evidence has not been received, the request to reopen the claim for service connection for posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for skin cancer, to include as due to exposure to chemical hazards, is remanded. FINDINGS OF FACT 1. The June 2010 rating decision that found that new and material evidence had not been submitted sufficient to reopen the claim for service connection for PTSD was not timely appealed, that decision became final. 2. Evidence received since the June 2010 rating decision does not raise a reasonable possibility of substantiating the underlying claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The June 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the June 2010 rating decision is not new and material and the claim for entitlement to service connection for PTSD is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to February 1970. He is a recipient of the Meritorious Unit Citation, the National Defense Service Medal, and the Rifle Marksman Badge. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2020 motion, the Veteran requested that his case be advanced on the docket due to a "significant decline" in his mental health, with the submission of a letter from his treating psychologist indicating worsening symptoms. A case may be advanced on the docket if the veteran is seriously ill. However, the Veteran has not demonstrated a serious illness. As such, the motion to advance the case on the docket is denied. 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). New and Material Evidence Ratings actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 C.F.R. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. Whether new and material evidence has been received to reopen the claim for service connection for PTSD. The Veteran seeks service connection for PTSD, which he contends was incurred in or caused by his military service due to traumatic events that he experienced while on active duty. See August 2004 Stressor Statement. The last prior final decision for the claim for service connection PTSD was a June 2010 rating decision. It is final because the Veteran did not file a notice of disagreement within one year of the rating decision. 38 U.S.C. § 7105, 38 C.F.R. §§ 20.302, 20.1103. Therefore, the Board looks to the evidence submitted since June 2010 for new and material evidence. At the time of the June 2010 rating decision, service connection for PTSD was denied because the claimed stressors were unable to be verified. Evidence received since June 2010 includes VA and private treatment records, lay statements and hearing testimony from the Veteran, and a February 2014 nexus opinion from the Veteran's private provider Dr. S.M., provided as a part of a Mental Health Questionnaire. Despite the new evidence, the Veteran's stressor remains unverified. Further, testimony as to the stressors provided during the Board hearing is cumulative of evidence previously of record. Thus, while this evidence was not of record at the time of the June 2010 RO decision, it does not relate to an unestablished fact necessary to substantiate the Veteran's claim, that is the unverified stressor. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for PTSD is not reopened. REASONS FOR REMAND Unfortunately, remand is required for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. Entitlement to service connection for skin cancer, to include as due to chemical exposure, is remanded. The Veteran contends that he developed skin cancer as the direct result of his service to include extended time spent outdoors, or due to claimed exposure to toxic chemicals. The Veteran asserts that he was exposed to "large vats of acid" and other cleaning solutions used to run weapons through to clean and repair them. The work area was hot with no air-conditioning and the Veteran would have to go outside to catch his breath. The Veteran testified that he first noticed "black spots and stuff" on his head when he was in-service. He now has spots on "the whole top" of his head, forehead, and neck. He testified that his condition resulted in the surgical removal of a third of his ear, which was repaired with skin grafts from his neck. The Veteran testified that his cancer has returned to the same ear and that it might have to be removed. See July 2021 Board hearing transcript. The Board notes that the Veteran's service treatment records are silent for any complaints, diagnoses, or treatment for skin cancer or any related symptoms. A December 2003 VA treatment notes a past medical history of skin cancer with "questionable melanoma of left ear with graft taken from clavicular area." A March 2013 VA treatment record notes the Veteran's 15-year history of a left-sided neck mass, which was evaluated by an outside provider who said that it was lipoma, but recommended against surgery secondary to the location of the mass. There is no indication whether the lipoma was cancerous. To date, the Veteran has not been afforded a VA examination. The Board finds that the Veteran should be afforded a VA examination and medical opinion before it can render an informed decision on the Veteran's claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. 2. Contact the Veteran and request that he provide information as to any outstanding private treatment records relevant to his skin cancer. After obtaining the necessary authorization from the Veteran, the AOJ should make reasonable efforts to obtain any identified treatment records. 3. Perform the necessary steps and contact the appropriate official sources to research the Veteran's asserted in-service exposure to toxic chemicals during his service between November 1967 to February 1970. The AOJ should consider the Veteran's assertions of exposures to acids and other chemicals while cleaning weapons. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to toxic chemicals, issue a formal finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service exposure to toxic chemicals. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his skin cancer. The entire claims file, to include a copy of this REMAND, must be provided to the examiner/s and reviewed in full. Thereafter, the respective examiner should provide a detailed medical opinion addressing the following: Identify all currently-diagnosed skin cancer conditions, including those diagnosed during the pendency of the appeal, even if resolved. (a) With regard to all currently-diagnosed skin cancers, is it at least as likely as not (50 percent probability or greater) that the Veteran's skin cancer was incurred in or otherwise causally related to his active service or any incident therein, to include in-service exposure to chemical hazards, to include acids and cleaning solutions used to clean weapons. In providing the requested opinion, the examiner must specifically consider and address the following evidence: The Veteran's assertions of exposure to toxic chemicals, including acid, while cleaning weapons and that the hot work area had not air-conditioning, would almost choke him, and that he had to go outside to get his breath. See July 2021 Board hearing transcript. The Veteran's hearing testimony that his skin cancer may be directly related to excessive time spent outdoors during service. Id. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.